While neither set of guidelines is binding, states are likely to draw on them when examining potential revisions to their own laws and regulations. It is too early to tell whether there will be a nationwide push toward standardization or whether providers, insurers, and vendors must continue to deal with inconsistent state telemedicine laws and regulations from one state to another. The only thing we know for sure is that both sets of guidelines will likely leave state legislators with plenty of questions.

Narrow definitions of "telemedicine" could lead to restricted patient access Both the FSMB guidelines and the AMA guidelines establish an overly narrow definition of "telemedicine." As a result, they fail to recognize several forms of electronic communications as potentially beneficial, valid modes of healthcare delivery.

The FSMB guidelines define telemedicine as: "the practice of medicine using electronic communications, information technology, or other means between a licensee in one location, and a patient in another location without an intervening healthcare provider." While this definition appears broad, the guidelines further provide that both secure videoconferencing and "store-and-forward" secure communication technology may be part of a telemedicine practice but that, generally, audio-only, email, and instant messaging technologies are not telemedicine. The FSMB definition is not without controversy, with a group of insurers, providers, and patient advocates warning that the definition could restrict access to telemedicine for those patients who strictly rely on audio devices, email, or text messages.

The AMA guidelines define telemedicine as comprising three categories: "store-and-forward," remote monitoring, and (real-time) interactive services, but the AMA similarly carves out audio-only, email, and instant messaging technologies from the definition.

Restricted access will be a significant issue. The definitions proposed by the guidelines would generally require the provider and the patient to have a robust Internet connection in order to conduct "telemedicine," which will be an issue for people in remote, rural areas. There is also the issue of limited accessibility for those with physical impairments. For example, blind patients may be reliant on audio-only interactions.

The definition of telemedicine is likely to evolve in the coming years. As more technologies develop and more medical boards assess statewide Internet capabilities, a more flexible definition will be necessary as more issues and restrictions are addressed.

Is an in-person meeting necessary? To establish a valid provider/patient relationship, many states require that the initial encounter between the provider and patient be in-person. This is often the biggest hurdle for providers seeking to practice telemedicine.

The FSMB and AMA guidelines both suggest, however, that there may be ways around an in-person meeting. The FSMB suggests that

Jeremy Johnson is a healthcare attorney with Gray Plant Mooty in Minneapolis where he has significant experience advising healthcare providers on emerging care models, including telemedicine. View Full Bio

Jeremy, the FSMB does not rule out the use of the telephone in patient interactions with physicians. But a telephone conversation alone between a doctor and an unknown patient does not establish the doctor-patient relationship. There are obvious reasons why it shouldn't and doesn't. First of all, identification would be a problem. Also, most states require, as part of the establishment of the doctor-patient relationship, an examination. The FSMB guidelines allow for a state to permit this to occur via videoconferencing if that is the standard of care. Unless there is an established doctor-patient relationship, prescribing prescription medication may get the doctor in trouble with his medical board.

For known patients, those who already have established a doctor-patient relationship, the FSMB guidelines do not rule out telephone interactions. So the "controversy" that the definition "could restrict access to telemedicine" is overblown. People need to have a "medical home" - a primary care provider - so that when they do have a medical problem they have the option of seeing the doctor in person or calling the doctor for a prescription.

Regarding email contact, that method could be a HIPAA violation waiting to happen if PHI (protected health information) is exchanged in the email. The same for instant-messaging. Although HIPAA does not require encryption, those who choose not to use encrypted forms of communication must explain why.

If "robust" means broadband, then, yes, an Internet connection would be required for a videoconferencing visit with a physician, primarily as the initial visit in which the doctor conducts a patient exam. Smartphone users are very familiar with Skype and Facetime. But they are not meant for confidential medical interaction. They don't have the same protections that videoconferencing programs have that are designed for medical purposes.

As to the aspect of vision-impairment, as long as the doctor can see the patient, there is no problem. The videoconferencing is for the doctor's ability to see and examine the patient.